Resentencing procedures under 1170.03 require notice, appointment of counsel and a hearing

People v. McMurray (Cal. Ct. App., Mar. 30, 2022, No. C090767) 2022 WL 949796, at *1–2

Summary: McMurray appealed the trial court’s denial of a recommendation made by the Secretary (Secretary) of the California Department of Corrections and Rehabilitation (CDCR) under former Penal Code section 11 that the trial court consider recalling defendant’s sentence and resentencing him in light of changes made to section 12022.53 which gave judges discretion to strike enhancements for the personal use of a firearm. The trial court denied resentencing without notice or the appointment of counsel. McMurray claimed that the trial court violated his constitutional rights and committed reversible error.
The People argued that the trial court lacked jurisdiction because was final before the amendments to section 12022.53 became operative. The People also argued that the trial court lacked authority to modify the sentence because defendant admitted the section 12022.53 enhancement as part of a negotiated plea, and the trial court cannot disregard the terms of the plea. The People also asserted that McMurray did not have a right to counsel or a right to provide additional information.
1170(d)(1) becomes 1170.03 effective January 1, 2022 and added a presumption in favor of resentencing
While the appeal was pending, Assembly Bill No. 1540 came into effect on January 1, 2022, and changed the recall and resentencing provisions of former section 1170(d)(1) to new section 1170.03. Assembly Bill 1540 clarified the Legislature’s intent regarding procedural requirements and the provision’s application to “ameliorative laws … that reduce sentences or provide for judicial discretion, regardless of the date of the offense of conviction. Assembly Bill 1540 added a presumption in favor of recall and resentencing. (§ 1170.03, subd. (b)(2).)
The court of appeal held that Assembly Bill 1540 applies because it is a clarification of former section 1170(d)(1), and reversed and remanded
Trial court proceedings

In 2010, McMurray pled guilty to one count of second degree robbery (§ 211) and admitted a personal firearm use enhancement (§ 12022.53, subd (b)). He admitted one prior strike and one prior serious felony (§§ 667, subds. (a) & (d), 1170.12, subd. (b)). The remaining charges and allegations were dismissed. The trial court sentenced him to 25 years in state prison, as follows: five years for the robbery charge doubled to 10 years due to the strike, 10 years consecutive for the firearm use enhancement, and five years consecutive for the prior serious felony. Defendant did not appeal, and the judgment became final.
In October 2019, the Secretary of the CDCR sent a letter to the trial court recommending defendant’s sentence be recalled and he be resentenced pursuant to former section 1170(d)(1). The recommendation was based on the amendments to section 12022.53, which now gives the trial court discretion to strike or dismiss personal firearm use enhancements. (§ 12022.53, subd. (h).) The letter included a copy of the information, abstract of judgment, and minutes from the plea and sentencing hearing. The letter and supporting evidence were served on the district attorney and public defender offices.
The trial court issued an ex parte order noting it had reviewed the letter from the Secretary but “declin[ed] the invitation to exercise its authority and discretion to resentence defendant.” The trial court gave no reasons for its decision.
The California Supreme Court has explained, that courts “cannot disregard” subsequent expressions of the Legislature as to its intent regarding a prior statute. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.(Western Security Bank).)” When a case involving such a clarifying amendment is on appeal, the appropriate resolution is to reverse and remand the matter for further proceedings in compliance with the amended legislation. (Id. at p. 253.)

Former section 1170(d)(1) authorized a trial court, at any time upon the recommendation of the Secretary, to “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” This same language is contained in section 1170.03, which is where Assembly Bill 1540 moved the recall and resentencing provisions of former section 1170(d)(1).
Former section 1170(d)(1) (and now section 1170.03) authorizes the Secretary of the CDCR to recommend to the superior court that the court recall a previously imposed sentence and resentence the defendant. (See People v. Loper (2015) 60 Cal.4th 1155, 1165.) The CDCR recommendation furnishes the court with jurisdiction it would not otherwise have to recall and resentence and is “an invitation to the court to exercise its equitable jurisdiction.” (People v. Frazier (2020) 55 Cal.App.5th 858, 866.)
Assembly Bill 1540 also clarifies the required procedures including that, when recalling and resentencing, the court “shall … apply any changes in law that reduce sentences or provide for judicial discretion.” (§ 1170.03, subd. (a)(2).) Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. (§ 1170.03, subds. (a)(6)-(8), (b)(1).) Where a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, “which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety.” (§ 1170.03, subd. (b)(2).)

The legislative history of these changes indicates that the Legislature sought through Assembly Bill 1540 to “ensure due process and equitable application in these types of resentencing cases” and indicate that trial courts should accept the CDCR’s resentencing recommendations. The legislative history further indicates that Assembly Bill 1540 was intended to clarify certain aspects of former section1170(d)(1)
that the appellate courts had incorrectly interpreted, including that, “when a sentence is recalled or reopened for any reason, in resentencing the defendant trial courts must apply [‘]any changes in law that reduce sentences or provide for judicial discretion.’ ” (Sen. Com. On Public Safety, Rep. on Assem. Bill No. 1540 (2021-2022 Reg. Sess.) as amended June 22, 2021, p. 3 [noting that People v. Federico (2020) 50 Cal.App.5th 318, 264 Cal.Rptr.3d 61, review granted August 26, 2020, S263082, held to the contrary].)
The Legislature repeatedly indicated that Assembly Bill 1540 was intended to “make clarifying changes” to former section 1170(d)(1), including specifying the required procedure and guidelines when the CDCR recommends recall and resentencing. (See, e.g., Sen. Com. on Public Safety, Rep. on Assem. Bill No. 1540 (2021-2022 Reg. Sess.) as amended June 22, 2021, pp. 2-3.) These changes were adopted in 2021, thereby promptly addressing appellate decisions from 2020 that had interpreted the Legislature’s intent regarding former section 1170(d)(1). Under the circumstances, the appropriate remedy is to reverse and remand the matter, so that the trial court can consider the CDCR’s recommendation to recall and resentence defendant under the new and clarified procedure and guidelines of section 1170.03. (See Western Security Bank, supra, 15 Cal.4th at p. 253, 62 Cal.Rptr.2d 243, 933 P.2d 507.) Here, g the trial court failed to provide defendant with notice of the recommendation from the CDCR, appoint counsel for defendant, hold a hearing, or state its reasons for declining to recall and resentence defendant.


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